1.1 Unless otherwise stated, this agreement, including without limitation all documents attached or referred hereto (if any) and the terms and conditions contained herein (as amended from time to time in accordance with the terms and conditions contained herein) (“Agreement”), is an agreement between the MIMZY Sdn. Bhd. (“MIMZY”) and the customer of MIMZY as described in the Order Confirmation Email (as hereinafter defined) (“CUSTOMER”).
1.2 The CUSTOMER acknowledges that the CUSTOMER has read and agrees to comply with and be bound by this Agreement.If the CUSTOMER disagrees with any part of this Agreement, the CUSTOMER shall immediately cease any access and/or use of the Application(as hereinafter defined)and shall immediately notify MIMZY of such disagreement.
1.3 If an individual is agreeing to or accepting this Agreement on behalf of (and for use on behalf of) a company, governmental entity, partnership or other entity ("Entity"), the individual represents that he/she has procured all the necessary consents and has the authority to enter into this Agreement on behalf of such Entity.
2.1 Unless the context otherwise requires, the following words and expressions shall have the respective meanings:
3.1 The subscription in respect of each subscription model (Basic, Standard and Premium)shall be on a monthly basis as below:
No. |
Subscription |
Subscription Terms and Renewal |
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1 |
Monthly |
The initial subscription term in respect of the Application shall commence on the date the Order Confirmation Email is sent by MIMZY to the CUSTOMER and shall continue for an initial period of one (1) month unless otherwise terminated earlier in accordance with the terms and conditions stipulated in this Agreement (“Initial Subscription Term”). The subscription shall automatically be renewed for successive periods of one (1) month following the Initial Subscription Terms (each a “Renewal Period”) unless either Party gives the other Party at least one (1) full month’swritten notice of its intention not to renew the subscription in respect of the Application(“Non-Renewal Notice”).Upon issuance of the Non-Renewal Notice, the subscription shall cease on the last day of the next Renewal Period (“Effective Termination Date”) and the Fees shall continue to be incurred until the Effective Termination Date. As an illustration,
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3.2 The Renewal Period shall be subject to the same terms and conditions (mutatis mutandis) contained in this Agreement save and except for the terms and conditions amended or varied in accordance with the terms and conditions contained in this Agreement.
3.3 The Initial Subscription Term together with any subsequent Renewal Period(s) (if any) shall constitute the “Subscription Term”. Unless otherwise terminated earlier in accordance with the terms and conditions contained in this Agreement, this Agreement shall expire on the expiry of the Subscription Term.
4.1 Subject to the CUSTOMER’s compliance with the terms and conditions of this Agreement and the payment of the Fees, MIMZY agrees:
4.2 Unless otherwise agreed by MIMZY, all works/services which are required to be performed by MIMZY under this Agreement will be provided remotely.
4.3 The CUSTOMER shall ensure and shall procure all Users to ensure that the User Credentials used by the Users to access and use the Application shall be kept secured and confidential at all times. The CUSTOMER shall be responsible for ensuring that the Users diligently maintain the confidentiality of the User Credentials and will not disclose the User Credentials to any person or third party not authorised to access and use the Application.
5.1 The CUSTOMER shall pay the fees in respect of the Application as confirmed via the Confirmation Email in accordance with this Clause 5 (Fees) (“Fees”). To the maximum extent permitted by all Applicable Laws, all Fees paid by the CUSTOMER are not refundable as MIMZY will commit to the period subscribed by the CUSTOMER.
5.2 The Fees payable in respect of the Initial Subscription Term shall be paid by the CUSTOMER to MIMZY in advance prior to the commencement of the Initial Subscription Term. The Fees payable in respect of each Renewal Period shall be paid to MIMZY in advance prior to the commencement of the said Renewal Period. The computer generated invoices in respect of the Fees will be available in the Application for viewing and download by the CUSTOMER.
5.3 Unless otherwise stipulated by MIMZY, the Fees shall be exclusive of all duties, imposts and taxes arising from or incidental to this Agreement (including but not limited to value added tax, sales and service tax, levies, duties and/or imposts that may result from the provision, use and/or supply of the Application) (collectively “Taxes”). The Taxes (if any) shall be payable by the CUSTOMER in addition to the Fees in a timely manner and the CUSTOMER shall keep MIMZY fully indemnified of any such Taxes. For clarity, each Party shall be responsible for taxes assessable against it based on its income and/or employees.
5.4 If any of the Fees isnot received by MIMZY on or before the commencement of the Initial Subscription Term or the relevant Renewal Period (as the case may be), without prejudice to any other rights and remedies of MIMZY and upon providing the CUSTOMER with seven (7) days’ prior notice, MIMZY shall have the sole discretion to discontinue and/or suspend the CUSTOMER’s and/or the Users’ use of and access to the Application without being responsible and/or liable for any consequence whatsoever resulting from such discontinuance and/or suspension.
5.5 The Fees set out herein are exclusive of travel expenses, per diem allowance and out-of-pocket expenses, including but not limited to expenses in respect of air tickets and hotel accommodation, if any (“Out of Pocket Expenses”). MIMZY shall be entitled to claim such Out of Pocket Expenses (if any) incurred pursuant to this Agreement from the CUSTOMER in addition to the Fees and MIMZY shall be fully reimbursed by the CUSTOMER.
Terms of Use
6.1 Except as expressly set out in this Agreement or expressly authorised by MIMZY in writing, the CUSTOMER shall not and shall not attempt to and shall ensure that the Users shall not and shall not attempt to:
6.2 The proprietary notices on any part of the Application shall not be altered, defaced or removed by the CUSTOMER under any circumstances whatsoever.
Use of MIMZY Materials and/or the Application
6.3 The CUSTOMER shall limit the access to and use of MIMZY Materials and/or the Application to only such persons who are required to access and use MIMZY Materials and/or the Application for the Permitted Purpose.
6.4 Subject always to Sub-Clause 3 above, the CUSTOMER shall use, and ensure that the Users, the CUSTOMER’s Personnel, Affiliates and Contractors, any third parties permitted by the CUSTOMER to have access to MIMZY Materials and/or the Application and/or other third parties engaged by the CUSTOMER who may or will have access to MIMZY Materials and/or the Application (“Recipients of MIMZY Materials”) use, MIMZY Materials and/or the Application solely for the Permitted Purpose.The CUSTOMER shall supervise and control the use of MIMZY Materials and/or the Application by all such Recipients of MIMZY Materials in accordance with the terms and conditions contained this Agreement. The CUSTOMER shall take all necessary steps and measures to prevent any unauthorised access to, or use of, MIMZY Materials and/or the Application and, in the event of any such unauthorised access or use, the CUSTOMER shall promptly notify MIMZY.
6.5 The CUSTOMER shall take appropriate action, by instruction, agreement or otherwise, to ensure that all Recipients of MIMZY Materials: (a)shall comply with the relevant terms and conditions contained in this Agreement, including without limitation Clause 6 (Terms of Use of the Application and Customer Materials), Clause 9 (The Customer’s Obligations), Clause 14 (Intellectual Property Rights) and Clause 15 (Confidentiality)(“Relevant Terms”); and (b) shall not cause the CUSTOMER to breach any of its obligations contained in this Agreement.
6.6 The CUSTOMER shall be fully responsible and assume full liability for: (a) any acts, omission, violation, breach, non-observance, non-compliance and/or negligence by or on the part of any of the Recipients of MIMZY Materials that would constitute a breach under this Agreement or otherwise cause the CUSTOMER to be in breach of any of its obligations under this Agreement;(b) any disclosure or use of MIMZY Materials and/or the Applicationin a manner not permitted under this Agreement by any of the Recipients of MIMZY Materials;(c) any violation, breachand/or non-observanceof or non-compliance with any of the Relevant Terms by or on the part of any of the Recipients of MIMZY Materials; and/or (d) the acts or omissions of any third party having unauthorised access to MIMZY Materials and/or the Applicationdue to any reason attributable to the CUSTOMER’s failure to comply with the terms and conditions contained herein, including without limitation failure to supervise and control the use of MIMZY Materials and/or the Application in the manner required under this Agreement.
Unlawful Materials and activities
6.7 The CUSTOMER shall not and shall not attempt to, and shall ensure that the Users shall not and shall not attempt to,store in, distribute or transmit to or through the Application any Materials that (or cause to be stored in, distributed or transmitted to or through the Application any Materials that) is unlawful, technologically harmful, threatening, abusive, discriminatory, defamatory, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate or infringe any Applicable Laws or the rights (including without limitation any Intellectual Property Rights) of others.
6.8 The CUSTOMER shall not use the Application to facilitate any unlawful or illegal activities.
CUSTOMER Data and Materials
6.9 The CUSTOMER shall own all rights, title and interest in and to all of the CUSTOMER Data and Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the CUSTOMER Data and Materials.
6.10 The CUSTOMER grants MIMZY(and/or its Personnel, Affiliates and Contractors) the right to, and shall be responsible for obtaining and maintaining all necessary approvals, permits and consents (under law, contracts or otherwise) for MIMZY (and/or its Personnel, Affiliates and Contractors) to, collect, access, use, process and/or transferthe CUSTOMER Data and Materials for the Provisioning of Services Purpose.
6.11 The CUSTOMER warrants and shall ensure that the collection of, access to, use of, processing of and/or transferofthe CUSTOMER Data and Materialsby MIMZY(and/or its Personnel, Affiliates and Contractors)under this Agreement for the Provisioning of Services Purposewill not infringe or violate any Applicable Laws and/or the rights (including without limitation the Intellectual Property Rights) of any third party.
MIMZY’s Rights to remove/delete CUSTOMER Data and Materials
6.12 Without prejudice to any rights or remedies of MIMZY under this Agreement or at law, MIMZY shall be entitled, without any liability whatsoever, to remove or delete any of the CUSTOMER Data and Materials that violates or breaches or may violate or breach any of the terms and conditions contained in this Clause 6 (Terms of Use of the Application and Customer Materials) from the Application.
8.1 During the Subscription Term, upon request by the authorities or where MIMZY suspects there has been a breach of this Agreement and/or of the law, the CUSTOMER shall grant and provide, and procure the grant and provisioning to, MIMZY, its nominees and/or any third party auditor appointed by MIMZY (“Auditor”) access to the relevant materials, reports, records, Users, data, documents, devices, equipment, systems, sites and premise in order for MIMZY and/or the Auditor to review, audit and inspect the performance of the CUSTOMER’s obligations under this Agreement, the CUSTOMER’s compliance with the terms and conditions under this Agreement and/or the CUSTOMER’s activities relevant to this Agreement. The CUSTOMER shall provide all necessary assistance to MIMZY and/or the Auditor for the purpose of conducting the review, audit or inspection.
8.2 Without prejudice to any other rights and remedies of MIMZY under this Agreement or at law, if any review, inspection and/or audit reveals that the CUSTOMER has failed or is failing to perform any of its obligations or is in breach of any of the terms and conditions under this Agreement, the cost of such review, inspection and/or audit incurred and/or suffered by MIMZY shall be fully borne by the CUSTOMER.
9.1 The CUSTOMER shall, at its own cost and expense:
10.1 MIMZY shall:
10.2 The Third-Party Software and Services may be supplied in or in connection with the Application and licensed under separate terms and conditions stipulated or published in the Application or stipulated in the documentation supplied by MIMZY and notified to the CUSTOMER (“Third Party Software Terms”).The CUSTOMER acknowledges that certain Third-Party Software and Services are provided by MIMZY as a “pass through” to the CUSTOMER and such Third-Party Software and Services may be covered by a warranty offered by such third-party.
10.3 The CUSTOMER acknowledges that Third- Party Software and Services may be supplied subject to the Third Party Software Terms and the CUSTOMER shall comply with all such Third Party Software Terms in addition to the terms contained in this Agreement. Third-Party Software and Services where no Third Party Software Terms are specifically notified to the CUSTOMER or published by MIMZY shall be subject to the terms and conditions of this Agreement, except that such Third-Party Software and Services are not subject to any warranties set forth in this Agreement. MIMZY expressly disclaims and excludes any warranty pertaining to Third-Party Software and Services to the maximum extent permitted by all Applicable Laws.
11.1 Subject to the CUSTOMER complying with its obligations under this Agreement, MIMZY warrants that the right to access and use the Application will be granted to the CUSTOMER, in accordance with the terms and conditions contained in this Agreement.
11.2 Notwithstanding anything contained herein, MIMZY does not warrant that:
11.3 Not with standing anything contained herein, MIMZY shall not be liable in any manner whatsoever for: (i)any non-conformity, error, issue, defect and/or problem in connection with the Application; and/or (ii) claim, action, breach, failure, indemnity, proceeding, demand, penalty, fine, suit, liability, loss, damage, cost (including legal fees on a solicitor-client basis) and/or expense,(“Liability”) to the extent such Liability arises from, is due to or is in connection with any of the following:
11.4 If MIMZY agrees to attend to any condition, error, issue, defect and/or problem due to or caused by any of the foregoing events, such services shall be considered out of scope services and additional charges shall apply.
12.1 To the maximum extent permitted by all Applicable Laws and notwithstanding anything contained in this Agreement:
12.2 To the maximum extent permitted by all Applicable Laws and notwithstanding anything contained in this Agreement, in no event shall MIMZY be liable for any indirect, incidental, special, punitive and/or consequential damages and/or losses whether or not such damages and/or losses were reasonably foreseeable or MIMZY had been advised of the possibility of the CUSTOMER incurring the same.
12.3 To the maximum extent permitted by all Applicable Laws and notwithstanding anything contained in this Agreement, MIMZY’s maximum and cumulative total liability (including without limitation liability under or in respect of any claim, action, breach, failure, indemnity, proceeding, demand, penalty, fine, suit, liability, loss, damage, cost (including legal fees on a solicitor-client basis) and/or expense and any liability for acts and omissions of MIMZY’s Personnel, Affiliates and Contractors) however arising, under or in connection with this Agreement, whether in tort, contract or otherwise shall not exceed a sum equivalent to the Fees payable by the CUSTOMER or the Fees for the first six (6) months of the Subscription Terms, whichever is lower.
13.1 The CUSTOMER shall indemnify, hold harmless and if so requested by MIMZY, defend MIMZY and/or its Personnel, Affiliates and Contractors (“Indemnified Party”) from and against any and all claims, actions, suits, proceedings, losses, costs(including legal fees on a solicitor-client basis), demands, damages, fines, penalties, liability and/or expenses (“Losses”) made against, suffered, or incurred by the Indemnified Party arising out of or in connection withany failure, violation, breach, misconduct, default, non-observance,non-compliance, misrepresentation, non-performance, neglect, negligence and/or omission (whether in tort, contract or otherwise) by or on the part of the CUSTOMER, the Users, the CUSTOMER’s Personnel, Affiliates and Contractors, the Recipients of MIMZY Materials and/or of any other person for whose acts or omissions the CUSTOMER is liable (vicariously or otherwise) under or in connection with this Agreement regardless of whether or not legal proceedings have been instituted and irrespective of the means, manner or nature of any settlement, compromise, or determination.
14.1 All Intellectual Property Rights of a Party (and/or its Personnel, Affiliates and Contractors) shall continue to be owned by the Party (and/or its Personnel, Affiliates and Contractors). Nothing in this Agreement shall transfer or assign any such Intellectual Property Rights to the other Party.
14.2 As between MIMZY and the CUSTOMER, all Intellectual Property Rights in relation to any intellectual or industrial Materials created pursuant to this Agreement by MIMZY shall belong absolutely to and immediately vest in MIMZY upon its creation.
14.3 As between MIMZY and the CUSTOMER, MIMZY shall own the following Materials (including all Intellectual Property Rights subsisting there in which shall be vested solely in MIMZY):
14.4 This Clause 14 (Intellectual Property Rights) shall survive the termination or expiry of this Agreement for whatsoever reason.
15.1 The “Confidential Information” of a Party (“disclosing Party”) shall mean all Materials of any kind, whether in writing, machine readable or visually readable form, oral or otherwise and whether or not labelled as “Confidential”: (i)that are made available, communicated or released by, or on behalf of, the disclosing Party to the other Party (“receiving Party”) or to the receiving Party’s Personnel, Affiliates and Contractors or other persons who are receiving such Materials on the receiving Party’s behalf (whether during or prior to the term of this Agreement) under, for the purpose in connection with or as a result of this Agreement; and (ii) that are obtained by the receiving Party or the receiving Party’s Personnel, Affiliates and Contractors or other persons who are obtaining such Materials on the receiving Party’s behalf (whether during or prior to the term of this Agreement) relating to the disclosing Party’s business, Personnel, Affiliates and Contractors, customers and/or operations under, for the purpose in connection with or as a result of this Agreement. Not with standing anything contained herein, the disclosing Party’s Confidential Information shall exclude any Material that:
15.2 For the avoidance of doubt and without limiting the generality of the foregoing, MIMZY’s Confidential Information shall include without limitation technical information, data, know-how, and Materials relating to MIMZY's and/or its affiliates’ business, operations, trade secrets, financial information and condition, marketing strategies and any other information that is by its nature confidential and proprietary to MIMZY and/or its Personnel, Affiliates and Contractors.
15.3 Unless otherwise stated herein, the receiving Party shall not disclose, and shall procure its relevant Personnel, Affiliates and Contractors not to disclose,the disclosing Party’s Confidential Information to any person except: (a) to the relevant governmental or statutory authorities, officers or bodies or any other person to the extent required by any Applicable Laws; (b) to any relevant tribunals, court officers, parties and/or court to the extent necessary to resolve any disputes under this Agreement; (c) to any person expressly permitted under this Agreement; (d)to its relevant Personnel, Affiliates and Contractors who have a definite need to know such Confidential Information for the Permitted Purpose (in the event the receiving Party is the CUSTOMER) or the Provisioning of Services Purpose (in the event the receiving Party is MIMZY); and/or (e) to any person approved by the disclosing Party in writing (“Permitted Disclosure”). The receiving Party shall limit the disclosure of the disclosing Party’s Confidential Information and shall only disclose such part of the disclosing Party’s Confidential Information as may be necessary having regard to the purpose relating to the Permitted Disclosure
15.4 Subject to Sub-Clause 3 above and without limiting the generality of Clause 6 (Terms of Use of the Application and Customer Materials) (Clauses 6.3 – 6.6 in particular), the CUSTOMER shall ensure that the Users, its Personnel, Affiliates and Contractors,any third parties permitted by the CUSTOMER to have access to MIMZY’s Confidential Information and/or other third parties engaged by the CUSTOMER who may or will have access to MIMZY’s Confidential Information (“Recipients of MIMZY’s Confidential Information”) have been duly apprised of the requirements of this Clause 15 (Confidentiality) and are or will be bound to keep MIMZY’s Confidential Information confidential as required under this Agreement. The CUSTOMER shall be responsible and assume full liability for any acts and omission of any of the Recipients of MIMZY’s Confidential Information that would constitute a breach of this Agreement or any disclosure or use of MIMZY’s Confidential Information in a manner not permitted under this Agreement by any or all of the Recipients of MIMZY’s Confidential Information. If requested by MIMZY, the CUSTOMER shall ensure, and shall procure, that the relevant Recipients of MIMZY’s Confidential Information enter into a non-disclose or confidentiality agreement with MIMZY in respect of MIMZY’s Confidential Agreement on the terms no less stringent that the terms contained in this Clause 15 (Confidentiality).
15.5 This Clause 15 (Confidentiality) shall survive the termination or expiry of this Agreement for whatsoever reason.
16.1 Without prejudice to any other rights and remedies the terminating Party may have under this Agreement or at law, a Party may immediately terminate this Agreement by notice in writing if:
(a) the other Party is in breach of any of the terms and conditions contained in this Agreement and such breach is not remedied within thirty (30) days of the terminating Party's written notice;
(b) the other Party ceases to conduct, or threatens to cease conducting, its ordinary business; or
(c) (i) the other party shall pass a resolution for winding up or becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency or bankruptcy administration or proceedings; (ii) if a receiving order is made against the other Party; (iii) the other Party has a receiver or similar officer appointed over all or a substantial part of its assets; or (iv) the other Party makes any arrangement or composition with its creditors (other than relating to a solvent restructuring).
16.2 Without prejudice to any other rights and remedies MIMZY may have under this Agreement or at law, MIMZY shall be entitled to terminate this Agreement for convenience (with or without any reason) by giving the CUSTOMER at least one (1) month’s notice in advance.
16.3 Without prejudice to any other rights and remedies MIMZY may have under this Agreement or at law, MIMZY shall be entitled to immediately (with or without notice) suspend, restrict or cease the CUSTOMER’s access to and use of the Application in any of the following events:
16.4 Upon the occurrence of any of the risks, breaches or events listed in Sub-Clause 3 above, MIMZY shall be entitled (but not obliged) to carry out all necessary safety measures, investigation and steps to minimise, remedy or resolve such risks, breaches or events. MIMZY may refuse to restore the CUSTOMER’s access or lift the suspension until MIMZY receives an assurance from the CUSTOMER, in the format MIMZY deems acceptable, that the said risks, breaches or events will be fully eliminated, remedied and/or resolved and that the CUSTOMER will take all steps necessary to prevent the same from reoccurring. Without prejudice to any other rights and remedies MIMZY may have under this Agreement or at law, in the event that any suspension continues for a period of thirty (30) days or more, MIMZY shall be entitled to terminate this Agreement.
17.1 Upon termination or expiry of this Agreement and without prejudice to any other rights and remedies under this Agreement or at law or equity,
17.2 Within thirty (30) days after the date of expiry, termination or discontinuance of this Agreement for whatever reason, MIMZY may expunge, destroy, remove and delete the CUSTOMER Data and Materials (including the Hosted Data)from or in its possession or system save and except that MIMZY may keep and maintain the information and/or records to the extent necessary for archival purposes or in order to comply with any Applicable Laws, established accounting principles and/or its reasonable internal retention policies. In the event that the CUSTOMER requires to retain any CUSTOMER Data and Materials for its own use, the CUSTOMER shall be responsible to download all such data within the said thirty (30) days. Unless otherwise agreed by MIMZY (subject to any additional fees as may be charged by MIMZY), MIMZY shall have no obligation to return or make available to the CUSTOMER any CUSTOMER Data and Materials processed by MIMZY under this Agreement upon expiry, termination or discontinuance of this Agreement for whatever reason.
18.1 Neither Party shall be liable for any failure or breach of this Agreement arising from causes beyond its reasonable control including but not limited to acts of God, insurrection, civil disorder, war or military operations, national or local emergency, acts or omission of government or other governmental authorities, government restraints, pandemics and/or viral outbreaks, industrial disputes of any kind (whether or not involving any of the Parties employees provided that such disputes are not initiated or caused by the affected Party for the purposes of avoiding its obligations herein), fire, lightning, explosion, flood, landslides, subsidence, inclement weather, acts or omission of persons or bodies whom the affected Party is not responsible for or any other cause whether similar or dissimilar outside the affected Party’s reasonable control (each a “Force Majeure Event”) to the extent that such failure or breach is caused by the Force Majeure Event.
19.1 Where the Application contains links to third party sites and to resources provided by third parties (“Third Party Sites”), those Third Party Sites are merely linked to provide information only and are solely for the CUSTOMER’s convenience. MIMZY has no control over and assumes no responsibility for the Materials contained in or on such Third Party Sites. MIMZY shall not be held responsible or liable in any manner whatsoever for any loss and/or damage that may arise from the CUSTOMER’s use of theThird Party Sites. If the CUSTOMER accesses any of the ThirdParty Sites, the CUSTOMER hereby agrees to do so entirely at the CUSTOMER’s own risk. The CUSTOMER acknowledges and accepts sole responsibility for and assumes all risk arising from access to, use of or reliance upon the Third Party Sites and/or any Materials contained in or on the Third Party Sites.
20.1 No publicity of any kind in relation to any matter in connection with this Agreement shall be made by the CUSTOMER other than in accordance with this Clause 20 (Publicity). All media releases, public announcements and public disclosures by the CUSTOMER relating to this Agreement or its subject matter shall be coordinated with MIMZY and subject to the MIMZY’s prior written approval.
21.1 This Agreement (together with any documents referred to herein) constitutes the whole agreement between the Parties relating to the subject matter hereof and supersedes any prior agreements, understandings or arrangements between the Parties, whether oral or in writing relating to the subject matter hereof and no representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Agreement except as set out in this Agreement.
22.1 Subject to Sub-Clause 2 below, all other addition, amendment, modification and/or variations shall be made in writing and signed by an authorized representative of each Party.
22.2 MIMZY shall have the right at any time to add, delete, amend or modify this Agreement and/or the Application, or any part thereof, from time to time in a manner which may not adversely and materially affect the CUSTOMER’s use of the SaaS Services. Such addition, deletion, amendment or modification shall be effective immediately upon notice thereof, which may be given by means of, including, but not limited to, posting on the Application, or by electronic or conventional mail, or by any other means by which the CUSTOMER obtains notice thereof. The CUSTOMER shall immediately notify MIMZY in the event that the CUSTOMER is not agreeable to any such addition, deletion, amendment or modification, in which case MIMZY shall be entitled to terminate this Agreement. Any use of the Application by the CUSTOMER after the issuance of such notice shall be deemed to constitute the CUSTOMER”s acceptance of this Agreement with such addition, deletion, amendment or modification.
23.1 This Agreement shall be binding upon the Parties hereto, and inure to the benefit of MIMZY and the CUSTOMER and their respective assigns and successors including their liquidators and/or receivers.
24.1 The CUSTOMER shall not, without the prior written consent of MIMZY, assign, transfer, charge, novate, sub-contract or deal in any other manner with all or any of its rights, benefits, obligations and/or duties under this Agreement. MIMZY shall be entitled to assign, transfer,novate and/or sub-contract any of its rights, benefits, obligations and/or duties under this Agreement to its affiliates or a third party in connection with a corporate restructuring exercise.
25.1 This Agreement shall be governed by, construed and enforced under the laws of Malaysia and the courts of Malaysia shall have exclusive jurisdiction hereto.
26.1 Any term, condition, stipulation, provision, covenant or undertaking (“Provision”, and any reference to Provision shall include any part thereof) contained in this Agreement which is illegal, invalid or unenforceable shall, to the maximum extent possible, continue to apply with the necessary modification in order that the Provision is legal, valid and enforceable provision which most closely reflects the original Provision. Subject to the foregoing, any Provision which is illegal, invalid or unenforceable shall be fully severable and ineffective to the extent of such illegality, invalidity or unenforceability without invalidating the remaining Provisions contained in this Agreement (such remaining Provisions shall remain in full force and effect).
27.1 Except as otherwise agreed or provided in this Agreement, all notices and other communications to be given by a Party to the other Party under this Agreement shall be in writing and shall be valid and sufficient if dispatched or sent in the following manner:
If by MIMZY to the CUSTOMER
If by the CUSTOMER to MIMZY
27.2 Notices shall be deemed to have been served (a) if delivered personally, the next business day after it has been delivered; (b) if sent by registered postal service or courier, three (3) business days after dispatch; (c) if sent by e-mail, upon successful delivery of the email and recorded as a sent email; (d) if sent by way of posting, publishing or sending a notification, on or through the Application, immediately upon it being successfully posted, published or sent.
27.3 If deemed service or receipt under Sub-Clause 2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), such notice is deemed to have been served or received when business next starts in the place of receipt
28.1 No failure or delay on the part of a Party in exercising any rights or remedies under this Agreement at any time or for any period of time shall operate as or be deemed to be a waiver thereof or otherwise diminish or affect the Party’s other rights and remedies under this Agreement. Any knowledge or acquiescence by a Party of, or in, any breach of any provision of this Agreement shall not operate as or be deemed to be a waiver. No single or partial exercise of any rights or remedies by a Party shall affect the other rights or remedies the Party may have under this Agreement. A waiver by a Party of any breach shall not constitute a continuing waiver in respect of any subsequent or continuing breach. A provision of right or remedy under this Agreement may not be waived except in writing signed by the Party so waiving.
29.1 This Agreement shall continue to be valid notwithstanding any changes in the Parties whether in name, style, constitution or composition.
30.1 Each Party shall bear its own costs incurred in the preparation of this Agreement (including but not limited to legal expenses) and the CUSTOMER shall pay for the applicable stamp duty.
31.1 The Provisions contained in this Agreement which are: (i) expressed to survive the termination or expiration of this Agreement; or (ii) capable of having effect and which by their nature, sense and context are intended to survive the termination or expiration of this Agreement, shall remain in full force and effect following the termination or expiration of this Agreement.
32.1 No Party shall hold itself out to be the principal or agent of the other Party for any purpose and under any circumstances. Nothing herein contained shall create or imply a partnership between the Parties. No Party has any authority to act, make representations or bind or contract on behalf of the other Party.
33.1 In this Agreement, unless the context otherwise requires: